This is the third in our series of Law Notes on the final rule titled "Medicare and Medicaid Programs: Reform of Requirements for Long-Term Care Facilities." (Click to read the first and second notes in the series.) Please be aware that since we posted our first note, the section of the final rule prohibiting pre-dispute arbitration agreements has been stayed and will not take effect on November 28, 2016, as originally planned. The litigation challenging this part of the rule is ongoing.
This Law Note addresses new and amended provisions affecting Skilled Nursing Facilities (“SNFs”) related to comprehensive person-centered care planning; resident rights; admission, transfer, and discharge rights; quality of life; and quality of care.
1. Comprehensive Person-Centered Care Planning (new 42 C.F.R. §483.21) *New section*
An entirely new section titled Comprehensive Person-Centered Care Planning will be implemented in Phase 1 [except for its provisions relating to (a) baseline care planning within 48 hours of admission (implemented as part of Phase 2 by November 28, 2017) and (b)(3)(iii) trauma informed care (implemented as part of Phase 3 by November 28, 2019)]. This section is intended to strengthen the rights of residents and promote resident choice by replacing the care planning requirements that were previously located in 42 C.F.R. §483.20(k). The new section requires an even more detailed and exhaustive plan of care for each resident (regardless of length of stay) that is person-centered and includes a resident’s needs and preferences.
The requirements that facilities must implement as part of Phase 1 include:
- Adding a nurse aide and a food and nutrition services staff member to the interdisciplinary team responsible for developing the comprehensive care plan;
- Developing and implementing a discharge planning process that prepares residents to be active partners in the process and includes regular updates; and
- Adding applicable discharge requirements mandated by The Improving Medicare Post-Acute Transformation Act of 2014 (IMPACT Act).
In addition to revamping the care plan process, SNFs should also be aware of the new definitions included in §483.5 and update policies and procedures accordingly. For example, the definition of “person-centered care” is to “focus on the resident as the locus of control and support the resident in making their own choices and having control over their daily lives.” The same section also includes a comprehensive new definition of “resident representative” to include an individual chosen by the resident to act on the resident’s behalf, access medical information, and receive notifications, in addition to guardians and other legal representatives.
The discharge planning requirements assume that each resident will have the goal of returning home at some point. If that is not feasible, the facility must document in the resident’s record who made the decision that returning home is not feasible and why the decision was made.
Focusing on discharge goals to reduce the number of preventable readmissions is one of the aspirations behind the final rule. To that end, SNFs are required to adhere to new requirements set forth in §483.15 regarding admission, transfer, and discharge rights and the requirements set forth at §483.10 regarding the rights of a resident and an SNF’s responsibility to support those rights.
2. Resident Rights (revised 42 C.F.R. §483.10)
The final rule retains all existing residents’ rights and makes technical revisions to clarify and improve the regulation. The final rule also updates provisions to account for new technology, such as electronic and video communications. Except for the provisions relating to providing contact information for certain organizations and purposes, which will be implemented in Phase 2, this section of the rule will be implemented in its entirety in Phase 1.
Notably, this section of the rule requires SNFs to provide written notice to residents at least 60 days prior to implementing any change to charges for items and services the SNF offers that are not covered by Medicare and/or the Medicaid State plan. In connection with the right to share a room with one’s spouse, or for a spouse to obtain access to a resident’s treatment information and medical records, the definition of spouse has been expanded to include same sex couples if their marriage was valid in the jurisdiction where it was celebrated.
This section also requires SNFs to provide equal access to quality of care and establish "identical policies and practices regarding transfer, discharge, and the provision of services under the State plan for all residents regardless of payment source." SNFs must continue to have policies and procedures relating to visitation rights. The revised rule specifies that residents have a right to receive visitors at the time of their choosing. If SNFs intend to restrict the time for visitation, they need to be sure their written policies set forth clinical or safety reasons that support a restriction or limitation on visitation. The rule also states that the SNF is considered a fiduciary of resident funds, and as such, SNFs must follow the section’s financial regulations. The regulations specify that SNFs cannot charge for special meals, food, or dietary supplements that have been ordered by a clinical professional. Under this section of the rule, SNFs are required to identify a grievance officer and update grievance policies according to the rule to ensure the prompt resolution of all grievances regarding the rights outlined in the section.
3. Admission, Transfer, and Discharge Rights (revised 42 C.F.R. §483.15)
Except for the provisions relating to documentation of transfer/discharge, which will be implemented in Phase 2, this section will be implemented in Phase 1 in its entirety. According to this section of the rule, SNFs must establish and implement new or enhanced policies and procedures regarding admission, transfer, and discharge according to the rule's terms. This section of the final rule also requires SNFs to establish and implement policies and procedures addressing readmissions.
The documentation provisions that take effect in Phase 2 require facilities to document certain additional information in residents’ medical records upon transfer or discharge. Furthermore, by the Phase 2 implementation deadline, SNFs will be required to exchange such information with the receiving provider upon transfer.
4. Quality of Life (new 42 C.F.R. §483.24)
While many of the requirements of this new section were previously included in the Quality of Care and other sections, it was determined that Quality of Life and Quality of Care should be separated. Quality of Life will be seen as a separate overarching principle in the delivery of care to residents. Consistent with the comprehensive plan of care (§483.21 discussed above), this section of the final rule requires facilities, among other things, to provide the necessary care and services to ensure that a resident’s abilities in the activities of daily living do not diminish unless the circumstances of the individual’s clinical condition demonstrate that such diminution was unavoidable. The regulation also provides additional information regarding the current requirement that SNFs have programs designed to meet residents’ interests and support the physical, mental, and psychosocial well-being of each resident. SNF programs must include a choice of activities that are facility-sponsored group and individual activities, as well as independent activities that encourage both independence and interaction in the community. Finally, the regulation specifies that SNFs must ensure that personnel provide basic life support, including CPR, to a resident requiring emergency care while waiting for the arrival of emergency medical personnel, subject to a physician's orders and the resident’s advance directives. This section is effective in its entirety in Phase 1.
5. Quality of Care (revised 42 C.F.R. §483.25)
In addition to the Quality of Life section, this section further requires facilities to ensure that residents receive treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan (discussed above), and the residents’ choices. This section of the rule includes an explicit requirement that SNFs assist individuals in making podiatric appointments (the prior version of the rule included only a requirement that residents received proper treatment and foot care). Except for the provision relating to trauma-informed care, which will be implemented in Phase 3, this section will be implemented in its entirety in Phase 1.
6. Revisions to State Operations Manual
In a November 9, 2016, transmittal to State Agency Directors, the Centers for Medicare and Medicaid Services (“CMS”) announced that it has incorporated the rule changes into the State Operations Manual, Appendix PP. The revised version (click here for advance copy) will be used for surveys occurring on and after November 28, 2016. The Interpretive Guidance has not yet been revised. CMS will issue a subsequent version of Appendix PP with updated Interpretive Guidance and a re-ordering of F-Tags at a future date. According to the transmittal, “only Phase 1 regulatory text is effective in this version of Appendix PP. We have included Phase 2 and Phase 3 language, but have distinguished these provisions within Appendix PP and have listed their effective dates.”